FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 30, 1999
APRIL 1999 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9807-CC-00288
)
vs. ) Williamson County
)
DANIEL M. TIDWELL, ) Hon. Donald P. Harris, Judge
)
Appellant. ) (Resisting Arrest)
FOR THE APPELLANT: FOR THE APPELLEE:
J. TIMOTHY STREET MICHAEL E. MOORE
136 Fourth Ave., South Solicitor General
Franklin, TN 37064
KIM R. HELPER
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
LEE DRYER
Assistant District Attorney
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Daniel M. Tidwell, appeals from his conviction for
resisting arrest,1 a Class B misdemeanor, in the Williamson County Circuit Court.
The trial court imposed a sentence of six months to be suspended after serving ten
days in the local jail. In this direct appeal, the defendant challenges the sufficiency
of the evidence and the manner of service of his sentence. After a review of the
record, the briefs of the parties, and the applicable law, we affirm the judgment of
the trial court.
The resisting arrest conviction arises from a 911 call placed from the
defendant’s home. The defendant’s wife requested assistance at their home
because the defendant had hit her. When police officers arrived, the defendant
locked himself in his house. The officers tried to contact the defendant by calling
him on the telephone and talking to him through bullhorns and a patrol car’s public
address system. The defendant did not respond to any of these attempts. Once
the officers learned from the defendant’s wife that the defendant had medical
problems, Captain Ricky Watson decided to force entry into the house without
obtaining an arrest warrant or search warrant. The officers found the defendant in
the front bedroom of the home lying with his back to the officers. The officers
advised the defendant that he was under arrest. As the officers attempted to
handcuff the defendant, he “flailed” his arms and struggled with the officers. The
defendant complained of chest pain, and the officers removed the handcuffs. He
refused medical attention; therefore, the officers cuffed his hands in the front of his
body. From this evidence, the court found the defendant guilty of resisting arrest.
I.
The defendant contends that there is insufficient proof of force to
1
Tenn. Code Ann. § 39-16-602(a) (1997).
2
sustain his conviction for resisting arrest. When an accused challenges the
sufficiency of the evidence, an appellate court’s standard of review is whether, after
considering the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92
(1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).
This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Dykes,
803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
Resisting arrest is “intentionally prevent[ing] or obstruct[ing] anyone
known to the person to be a law enforcement officer . . . from effecting a stop, frisk,
halt, arrest or search of any person, including the defendant, by using force against
the law enforcement officer or another.” Tenn. Code Ann. § 39-16-602(a) (1997).
Force is defined as “compulsion by the use of physical power or violence and shall
be broadly construed to accomplish the purposes of this title.” Tenn. Code Ann. §
3
39-11-106(a)(12) (1997).
The defendant contends that waving his arms while the officers
attempted to handcuff him does not constitute the force necessary to sustain a
conviction for resisting arrest. According to the defendant, this case is analogous
to State v. Corder, 854 S.W.2d 653 (Tenn. Crim. App. 1992). In Corder, the
defendant “refused to get into the patrol car and used obscene language at the
officers.” Corder, 854 S.W.2d at 655. This was insufficient proof of force, and the
conviction for resisting arrest was dismissed. Id.
We find this case to be more analogous to State v. William Randy
Jackson, No. 02C01-9405-CC-00097 (Tenn. Crim. App., Jackson, Mar. 1, 1995)
and State v. Ronald David Lee, No. 03C01-9410-CR-00393 (Tenn. Crim. App.,
Knoxville, July 6, 1995). In William Randy Jackson, the defendant barricaded
himself inside a house and refused to leave the house. William Randy Jackson, slip
op. at 3. The officers used tear gas to force the defendant out of the house. Id. In
order to handcuff the defendant, the officers had to gain physical control over him.
Id. The main difference between this case and William Randy Jackson is that
Jackson possessed a weapon. However, this court considered the facts that
Jackson barricaded himself in a house and refused to follow instructions once he
was forced outside the house in affirming his conviction for resisting arrest. Id. at
5. In Ronald David Lee, the defendant “wrestled” and struggled with the officer
attempting to handcuff him and had to be forced into the police car. Ronald David
Lee, slip op. at 3. In affirming the conviction, this court found the evidence
supported the finding that the defendant used force to resist arrest because the
officer had to “wrestle” with the defendant to handcuff him. Id. at 7.
The state cites State v. Edward Iroghuehi Isibor, No. 01C01-9610-CC-
4
00441 (Tenn. Crim. App., Nashville, Sept. 30, 1997), to support its argument that
waving the arms and struggling with a police officer to prevent from being
handcuffed is sufficient force to sustain a conviction for resisting arrest. In Isibor,
the defendant struggled and flailed his arms to avoid being handcuffed. Id., slip op.
at 5. The officer had to spray the defendant with “Freeze” to subdue him. Id. This
court found the evidence sufficient to support the conviction for resisting arrest. Id.
In this case, the defendant locked himself inside his residence and
refused to respond to the officers’ attempts to ascertain his condition and to
investigate a possible assault crime. When officers forced entry and attempted to
handcuff the defendant, he flailed his arms and struggled with the officers. In the
light most favorable to the state, the defendant used sufficient force to support a
conviction for resisting arrest.2
II.
The defendant challenges the imposition of a period of confinement.
In determining whether the trial court has properly sentenced an individual, this
court engages in a de novo review of the record with a presumption that the trial
court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). In
conducting our de novo review, we must consider the evidence at sentencing, the
presentence report, the sentencing principles, the arguments of counsel, the
statements of the defendant, the nature and characteristics of the offense, any
mitigating and enhancement factors, and the defendant’s amenability to
rehabilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann. §
2
In the defendant’s brief, the defendant argues that an arrest warrant or
search warrant should have been obtained. The legality of the arrest is not
relevant to the determination of whether the defendant committed the offense of
resisting arrest, unless the defendant is claiming self defense against excessive
force from officers. See Tenn. Code Ann. §§ 39-16-602(b), -11-611(e) (1997).
5
40-35-103(5) (1997). On appeal, the appellant has the burden of showing that the
sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing
Comm'n Comments (1997).
In felony sentencing, the trial court has an affirmative duty to state in
the record, either orally or in writing, which enhancement and mitigating factors it
found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code
Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274 (Tenn.
1998). In contrast, the misdemeanor sentencing statute only requires that the trial
court consider the enhancement and mitigating factors when calculating the
percentage of the sentence to be served "in actual confinement" prior to
"consideration for work release, furlough, trusty status and related rehabilitative
programs." Tenn. Code Ann. §§ 40-35-302(d) (1997); Troutman, 979 S.W.2d at
274.
In determining whether to grant probation, the judge must consider the
nature and circumstances of the offense, the defendant’s criminal record, their
background and social history, their present condition, including their physical and
mental condition, the deterrent effect on other criminal activity, and the likelihood
that probation is in the best interests of both the public and the defendant. Stiller
v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The defendant bears the burden of
establishing suitability for probation, even when the defendant is presumed to be
eligible for probation. See Tenn. Code Ann. §§ 40-35-303(a)-(b) (1997).
The defendant contends that the trial judge did not make findings on
the record regarding the applicable enhancement or mitigating factors; therefore,
the presumption of correctness should not apply. The trial judge’s findings were
brief; however, the judge is not required to state findings on the record regarding the
6
applicable enhancement or mitigating factors in misdemeanor sentencing.3 See
Troutman, 979 S.W.2d at 274; State v. Clinton E. Key, No. 01C01-9805-CR-00229,
slip op. at 3 (Tenn. Crim. App., Nashville, Apr. 20, 1999). As such, the lack of
detailed findings is not a basis to remove the presumption of correctness of a
misdemeanor sentence. See State v. Lauren E. Leslie and Janie Whitehead, No.
03C01-9804-CR-00125, slip op. at 4 (Tenn. Crim. App., Knoxville, Mar. 23, 1999).
The record of the case at bar reflects that the trial court considered the
relevant sentencing principles and considerations. Accordingly, its determination
is entitled to the presumption of correctness.
In determining the sentence, the trial court found that the defendant
had no prior criminal record. The trial court voiced concern over threats the
defendant made to police officers under oath during the General Sessions trial in
this matter. As an aside, the trial judge stated that the arrest was illegal, but the
officers thought it was best to force entry into the defendant’s home.
We conclude that the trial court did not err in imposing ten days
confinement prior to probation. In deciding whether to grant probation, the trial
judge must consider the best interests of both the public and the defendant. See
Stiller, 516 S.W.2d at 620. The fact that the defendant made threats to police
officers while under oath at his General Sessions trial supports the trial judge’s
imposition of ten days confinement.
3
In oral argument, the defendant contended that Troutman only applies to
DUI cases. However, this court has applied Troutman to other misdemeanor
cases. See, e.g., State v. Steve A. Baggett, No. 01C01-9710-CC-00464, slip op.
at 3 (Tenn. Crim. App., Nashville, May 4, 1999) (reckless driving); State v. Robert
Patton, No. 03C01-9711-CC-00502, slip op. at 5 (Tenn. Crim. App., Knoxville,
Apr. 28, 1999) (assault); State v. Dion Andres Russell, No. 03C01-9803-CR-
00092, slip op. at 14 (Tenn. Crim. App., Knoxville, Apr. 7, 1999) (resisting arrest,
evading arrest and inciting to riot).
7
In consideration of the foregoing and the record as a whole, we affirm
the trial court.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
JOHN H. PEAY, JUDGE
_______________________________
DAVID H. WELLES, JUDGE
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